22 Ark. 499 (1861)
In November 1827, the steamboat America sank in the Mississippi River within the limits of Mississippi County, Arkansas, leaving behind a cargo that included an unascertained quantity of shot and bar lead as well as approximately three thousand pigs of lead.1
The owners saved the specie, furs, boilers, machinery, and roughly half the lead during two weeks of initial efforts before high water interrupted the work.2 No further attempts were made. An island later formed over the site sustaining trees thirty to forty feet high.3
In December 1854 Brazelton, having learned the wreck's approximate location from Captain Swan, traveled to determine its exact position in the river bed.4 In January 1855 he returned with his diving boat, fastened a buoy over the wreck, and traced lines from marked trees on the Arkansas bank to fix its location, but he was then delayed by other salvage work on the Eliza, equipment repairs, and seasonal river conditions until September 1855.5
On 28 September 1855 the defendants, partners in the wrecking firm Eads & Nelson operating the boat Submarine No. 4, stopped near the site, located the wreck, placed their vessel over it, and began raising lead.6 They recovered a quantity whose value, according to the price shown in evidence, totaled four thousand five hundred seven dollars and ninety-six cents.7
Brazelton filed his bill on the chancery side of the Circuit Court of Mississippi County seeking an injunction, protection of his claimed right, recovery of the property, and compensation.8 The court granted a preliminary injunction that halted the defendants.9 It later perpetuated the injunction in a final decree awarding Brazelton the full value of the lead.10 It also imposed a one-thousand-dollar contempt fine on two defendants that was paid to Brazelton after they anchored near his boat and obstructed his operations.11 The defendants appealed to the Supreme Court of Arkansas.12
Whether Brazelton acquired possession of the wreck of the America through his discovery, marking, and preparatory actions in the vicinity?13
Title by occupancy requires both the intention to possess as owner and the corporeal possession of the thing, meaning an actual taking with intent to reduce it to possession. Mere discovery, marking of trees, placement of temporary buoys, or preparatory acts while remaining in the vicinity without placing a boat over the wreck are insufficient.14
No. Brazelton traced lines from marked trees on the Arkansas bank and fastened a buoy over the wreck in January 1855. He intended to raise the lead. But he never placed his diving boat over the wreck or raised any lead before the defendants arrived on 28 September 1855.15 His delays from other salvage work on the Eliza, equipment repairs, and seasonal river conditions left him without the required actual detention or corporeal possession of the property.16
Brazelton did not acquire possession of the wreck through his discovery, marking, and preparatory actions.17
Whether the cargo of lead had been abandoned by the original owners of the America?18
Yes. After the America sank in November 1827 the owners recovered the specie, furs, boilers, machinery, and roughly half the lead during two weeks of effort before high water stopped them.21 They made no further attempts. An island with trees thirty to forty feet high formed over the remaining lead by the time Brazelton located the site in 1854. This demonstrated that all reasonable hope of recovery had been given up.22
The cargo of lead had been abandoned by the original owners of the America.23
Whether the defendants located and occupied the wreck by using Brazelton's tree marks or other information obtained from him?24
No. Captain Eads had known the approximate location since at least 1843 or 1853.27 Captain Neaves received information from negroes on the bank, and Captain Turner found the wreck without Brazelton's marks in February 1855, while the evidence of any use of the tree marks by the defendants is conflicting and unsatisfactory.28
The defendants did not locate and occupy the wreck by using Brazelton's tree marks or other information obtained from him.29
Whether the Circuit Court of Mississippi County properly granted the preliminary injunction in vacation and perpetuated it in the final decree?30
No. Brazelton's marking of trees, placement of a buoy, and presence in the vicinity from January to September 1855 constituted only preparatory acts and expressions of intent. He never achieved the corporeal possession required by placing his boat over the wreck and commencing recovery operations.33 Because he lacked actual possession, the Circuit Court lacked authority to issue or perpetuate an injunction protecting a nonexistent right of occupancy. The preliminary injunction granted in vacation and later perpetuated therefore rested on an insufficient legal foundation and must be dissolved on remand.34
The Circuit Court of Mississippi County did not properly grant the preliminary injunction in vacation or perpetuated it in the final decree.35
Whether the decree awarding the full value of the lead raised by the defendants should have deducted their expenses of recovery?36
No. The Circuit Court awarded Brazelton the full value of four thousand five hundred seven dollars and ninety-six cents without any deduction for the defendants' expenses in raising the lead.39 But since Brazelton never established any right of occupancy or possession over the wreck, he had no basis for recovering the value of the lead or any damages.40 The decree therefore cannot stand regardless of how expenses might have been calculated.41 Reversal of the decree in its entirety is required, with instructions to dissolve the injunction and restore the one-thousand-dollar fine to the defendants.42
The decree awarding the full value of the lead raised by the defendants cannot stand and must be reversed without regard to expense deductions.43